Undocumented Worker In California Can Sue His Employer's Attorney For Trying To Get Him Deported In Retaliation For His Wage-And-Hour Claims.

Transcription

1 Undocumented Worker In California Can Sue His Employer's Attorney For Trying To Get Him Deported In Retaliation For His Wage-And-Hour Claims. Issue Decided ISSUE: Can an employer's attorney be held liable for retaliating against his client's employee because the employee sued his client for violations of workplace laws? HELD: Yes Background In 1995, plaintiff José Arnulfo Arias (employee or Arias) went to work as a milker for Angelo Dairy. Three Angelos owned and operated the dairy: Luis, Maria, and Joe ( Angelos ). When the Angelos hired Arias, they did not complete and file a Form I-9 ( I-9 ) regarding his employment eligibility in the United States. The court noted that an I-9 is a document required by U.S. Citizenship and Immigration Services ( USCIS ), and that the USCIS explains the purpose of the I-9 and process as follows: Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. Employers must retain Form I-9 for a designated period and make it available for inspection by authorized government officers. 1 1 U.S. Citizenship and Immigration Services, I-9, Employment Eligibility Verification, (last updated Jan. 23, 2017).

2 The court pointed out that instead of complying with federal law, the Angelos wielded it as a weapon to confine Arias in their employ. When Arias informed Luis Angelo in 1997 that he had been offered a position with another dairy, Luis responded that if [Arias] left to work at the other dairy, [Luis] would report the other dairy to federal immigration authorities as an employer of undocumented workers, which Arias was. This threat caused Arias to forego his other employment opportunities and to remain with the Angelos. In 2006, Arias sued Angelo Dairy in California state court. Arias alleged causes of action on behalf of himself and other employees under California's Unfair Competition Law ( UCL ), Cal. Bus. & Prof. Code et seq., for a variety of workplace violations, including failure to provide overtime pay and rest and meal periods. Later, he added a cause of action under California's Private Attorneys General Act of 2004 ( PAGA ), Cal. Lab. Code 2698 et seq. The Superior Court struck his representative claims in the UCL and PAGA causes of action. The Court of Appeal later issued a peremptory writ of mandate directing the Superior Court to vacate its order as to the PAGA cause of action. 2 The Superior Court then set a trial date of August 15, On June 1, 2011, ten weeks before the state court trial, the Angelos attorney, Anthony Raimondo, set in motion what the court called an underhanded plan to derail Arias's lawsuit. Raimondo's plan according to the court involved enlisting the services of U.S. Immigration and Customs Enforcement ( ICE ) to take Arias into custody at a scheduled deposition and then to remove him from the United States. A second part of Raimondo's plan was to block Arias's California Rural Legal Assistance attorney from representing him. This double barrel plan was captured in messages back and forth between Raimondo, Joe Angelo, and ICE's forensic auditor Kulwinder Brar. Arias quoted these revealing exchanges in his current complaint: 23. On June 1, 2011, Defendant RAIMONDO ed Immigration and Custom Enforcement ( ICE ) Forensic Auditor Kulwinder Brar, an employee of the U.S. Department of Homeland Security (DHS). In this , Defendant RAIMONDO supplied Brar with information about Plaintiff's identity, and asked Brar to [l]et me know if there is anything that you can do. 24. On the same day, June 1, 2011, all parties to the 2006 Lawsuit attended a mediation in Stockton, California. The mediation was unsuccessful. 25. On June 14, 2011, Defendant RAIMONDO sent Joe Angelo a text message stating, Immigration is trying to verify Arias [sic] status - let me know if you have any more info on him. Joe Angelo responded by providing Defendant RAIMONDO with Plaintiff's driver's license number. 26. On June 15, 2011, Defendant RAIMONDO ed to ICE Auditor Brar the information Joe Angelo had provided. In doing so, Defendant RAIMONDO stated, I hope this helps. [Plaintiff] will be attending a deposition next week. If 2 See Arias v. Superior Court, 153 Cal. App. 4th 777, (Cal. Ct. App. 2007), aff'd, 46 Cal. 4th 969 (2009).

3 there is an interest in apprehending him, please let me know so that we can make the necessary arrangements. 27. On June 16, 2011, ICE Auditor Brar responded to Defendant RAIMONDO's of June 1, 2011, stating that [b]ased on our records he [Plaintiff] has no legal status. We will be forwarding this information to ERO [Enforcement and Removal Operations] and your contact information if they want to proceed with this matter. 28. Defendant RAIMONDO replied to ICE Auditor Brar, asking her to [p]lease let ERO know that they can expect our full cooperation and assistance, and to let me know if there is anything I can do to be of assistance to you. Brar responded, No problem and we will get your contact information as soon as contact is made. Arias' complaint also alleged the impact of Raimondo's actions on him and his case, and Raimondo's pattern and practice of similar conduct in other cases: 29. Plaintiff became aware on June 22, 2011 that Defendant had provided information concerning Plaintiff to the immigration authorities. Fearing that he would be deported and separated from his family, Plaintiff suffered anxiety, mental anguish, and other emotional distress from Defendant's retaliatory action. 30. On July 11, 2011, one month before trial, the parties participated in a settlement conference. In lieu of proceeding to trial on the wage and hour claims comprised within the 2006 Lawsuit, Plaintiff entered into a settlement and release of those claims, due in substantial part to the threat of deportation created by Defendant's communications with ICE. 31. On information and belief, Defendant RAIMONDO's actions against Plaintiff are reflective of and consistent with his pattern and practice of retaliating against employees who assert their workplace rights. In fact, Defendant RAIMONDO has stated in a declaration filed in a court action that it is his practice to investigate the immigration status of plaintiffs who have brought legal claims against his clients. 32. On at least five additional occasions, and consistent with his pattern and practice, Defendant RAIMONDO has contacted ICE with respect to employees who have asserted their workplace rights against employers whom Defendant RAIMONDO has represented, and has offered his assistance to ICE in apprehending those employees. 33. On May 2, 2013, Defendant RAIMONDO confirmed the above pattern and practice in an he sent to Thomas Hester of the Office of Inspector General at the Legal Services Corporation, in which he stated, The time when I have

4 had litigants deported, I have always simply taken action rather than make any threats. The attorneys find out when their clients are already gone. The Employee s Complaint On May 8, 2013, Arias filed this lawsuit against Angelo Dairy, the Angelos, and Raimondo in federal court in the Eastern District of California. Arias alleging that the defendants violated section 215(a)(3) of the Fair Labor Standards Act ( FLSA ), 29 U.S.C. 201 et seq. 3 Arias' theory was that Raimondo, acting as the Angelos agent, retaliated against him in violation of section 215(a)(3) of the FLSA for filing his original case against Raimondo's clients in state court. Raimondo's sole legal defense was that because he was never Arias' actual employer, and therefore, he could not be held liable under the FLSA for retaliation against someone who was never his employee. Angelo Dairy and its owners settled their part of this case at the early stages of its existence. The District Court granted Raimondo's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The District Court concluded that because Arias ha[d] not alleged that [Raimondo] exercised any control over [his] employment relationship, Raimondo, as a matter of law, could not be Arias' employer. Arias appealed the District Court s decision to the Ninth Circuit Court of Appeal. The Ninth Circuit reversed the District Court s decision for the reasons set forth below. Court s Decision The court began their analysis with a review of FLSA Section 215(a)(3), and held that the antiretaliation provision, makes it unlawful: for any person to discharge or in any other manner discriminate against any employee because such employee has filed any complaint under or related to this chapter. (Emphasis added) The Court pointed out that the FLSA defines the term person to include a legal representative. Id. 203(a); and that Section 216(b) in turn creates a private right of action against any employer who violates section 215(a)(3); and the FLSA defines employer to include any person acting directly or indirectly in the interest of an employer in relation to an employee. Id. 203(d), 216(b). 3 Arias's current complaint also contains claims for intentional infliction of emotional distress and unfair competition.

5 Important Differences Between Wage & Hour Claims Verse Retaliation Claims The Court held that: Controversies under FLSA sections 206 and 207 that require a determination of primary workplace liability for wage and hour responsibilities and violations, on one hand, and controversies arising from retaliation against employees for asserting their legal rights, on the other, are as different as chalk is from cheese. Each category has a different purpose. It stands to reason that the former relies in application on tests involving economic control and economic realities to determine who is an employer, because by definition it is the actual employer who controls substantive wage and hours issues. Retaliation is a different animal altogether. Its purpose is to enable workers to avail themselves of their statutory rights in court by invoking the legal process designed by Congress to protect them. 4 (Emphasis added) The court held that this distinctive purpose is not served by importing an economic control or an economic realities test as a line of demarcation into the issue of who may be held liable for retaliation. The court said, To the contrary, the FLSA itself recognizes this sensible distinction in section 215(a)(3) by prohibiting any person not just an actual employer from engaging in retaliatory conduct. By contrast, the FLSA's primary wage and hour obligations are unambiguously imposed only on an employee's de facto employer, as that term is defined in the statute. Treating any person who was not a worker's actual employer as primarily responsible for wage and hour violations would be nonsensical. (Emphasis added) The court noted that the District Court had incorrectly based its decision on precedent pertaining to whether a person was an employer for purposes of the FLSA's substantive economic provisions, i.e., those involving wages and hours, etc., not section 215(a)(3) retaliation. The court held that the case law cited by the lower court was simply inappropriate in the context of an allegation of retaliation. 5 The Court cited the Supreme Court's decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, (2006), as support for their analysis, albeit in a different context: Title VII of the Civil Rights Act of 1964's ( Title VII ) anti-retaliation provision. 6 The Court cited extensively from the Burlington decision, and pointed out that the issue in Burlington was whether the actions and harms forbidden by Title VII's anti-retaliation provision were confined to those that are related to employment or occur at the workplace. Focusing on differences in 4 Robinson v. Shell Oil Co.,519 U.S. 337, 346, (1997) (the primary purpose of antiretaliation provisions is to [m]aintai[n] unfettered access to statutory remedial mechanisms ). 5 Please see the decision for a more in-depth review of the Ninth Circuit s distinguishing and rejecting the case law cited by the District Court in support of its decision U.S.C. 2000e-3(a).

6 language and purpose between the substantive provisions of Title VII and the anti-retaliation provision, the Supreme Court held that Title VII's anti-retaliation provision is not so confined. The U.S. Supreme court concluded that Title VII's substantive provision and its anti-retaliation provision were not equal in range or scope. The U.S. Supreme Court concluded that: The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm. We therefore reject the standards applied in the Courts of Appeals that have treated the anti-retaliation provision as forbidding the same conduct prohibited by the antidiscrimination provision and that have limited actionable retaliation to so-called ultimate employment decisions. 7 In this case the Ninth Circuit held that the difference in reach between FLSA's substantive economic provisions and its anti-retaliation provision is unmistakable. The wage and hour provisions focus on de facto employers, but the anti-retaliation provision refers to any person who retaliates. 8 Additionally, the court pointed to the fact that section 203(d) extends this concept to any person acting directly or indirectly in the interest of an employer in relation to an employee. See Id. 203(d). Therefore, the court concluded that Congress clearly meant to extend section 215(a)(3)'s reach beyond actual employers, and held that Raimondo's activity in this case on behalf of his clients illustrates the wisdom of this extension. 9 The court held that Arias may proceed with this retaliation action against Raimondo under FLSA sections 215(a)(3) and 216(b) and that Raimondo's behavior as alleged in Arias's complaint manifestly falls within the purview, the purpose, and the plain language of FLSA sections 203(a), 203(d), and 215(a)(3). Summary and Important Points 1. All employers are required to complete a form I-9 for every employee working for them as required under federal law. Please see the following link for the USCIS guidance on the I-9 requirements I-9, Employment Eligibility Verification, (last updated Jan. 23, 2017). The employer in this case started out on the wrong foot in this case by not even completing an I-9 form for Arias, and then instead of complying with federal law, the employer wielded it as a weapon to confine the employee in their employ. 2. As noted in the BACKGROUND section above, s by the employer s attorney to ICE's forensic auditor played in the proof of retaliation by the attorney. Remember, anything you put in an that is not subject to the attorney client privilege is subject to discovery in a 7 Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, (2006). Please see the full Ninth Circuit decision for the Court s full discussion of this case. 8 See 29 U.S.C. 215(a)(3). 9 For the Court s discussion of the Bowe v. Judson C. Burns, Inc., 137 F.2d 37 (3d Cir. 1943) and Sapperstein v. Hager, 188 F.3d 852, (7th Cir. 1999) decisions and how the court believed they supported their opinion in this case.

7 lawsuit. In this case, Raimondo s was not to his client, instead it was to ICE, and therefore outside the privilege. It is important for all employers to be aware that internal s about employee issues may be discovered as part of any litigation. These types of s can be very damaging in their content and can severely impact the defense of a lawsuit. BE VERY CAREFUL, your employees need to know when to stop ing. 3. This case clearly highlights that under the FLSA anti-retaliation protections it is unlawful for any person to discharge, or in any other manner discriminate against any employee because such employee has filed any complaint. All employers and their supervisors must understand the breadth of these protections. 4. The Court pointed out that the FLSA defines the term person to include a legal representative. Id. 203(a); and that Section 216(b) in turn creates a private right of action against any employer who violates section 215(a)(3); and the FLSA defines employer to include any person acting directly or indirectly in the interest of an employer in relation to an employee. Id. 203(d), 216(b). All of this results in very broad anti-retaliation protections for employees who have made complaints under the FLSA. If you have any questions concerning this or any other employment law related issues please do not hesitate to contact me by either replying to this or by telephone at or or my assistant Nanci Berry at this number. This update is provided by Gary W. Bethel and Littler Mendelson in order to review the latest developments in employment law. This update is designed to provide accurate and informative information and should not be considered legal advice Littler Mendelson. All rights reserved. About Littler Mendelson Littler is the largest global employment and labor law practice with more than 1,000 attorneys in over 60 offices worldwide. Littler represents management in all aspects of employment and labor law and serves as a single source solution provider to the global employer community. Consistently recognized in the industry as a leading and innovative law practice, Littler has been litigating, mediating and negotiating some of the most influential employment law cases and labor contracts on record for over 70 years. Littler is the collective trade name for an international legal practice, the practicing entities

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